State Senator Greg Brophy is a farmer and avid cyclist. He represents 12 counties in eastern Colorado. He's been called one of the most conservative members of the legislature and a Prius driving, bicycle riding, eco freak. You decide...

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Monday, March 1, 2010

Right to Float?

HB10-1188 takes on a complicated issue: is there a right to float down waterways in Colorado?

For years, the accepted answer was yes, as long as you don’t make contact with the bed or banks of the stream. This kept people off small rivers and streams, but allowed recreational activity on rivers like the Arkansas, Eagle, Colorado, Taylor and Yampa to name a few. I suppose that rafters technically break the law when they bounce off boulders in the middle of the stream, but I don’t know of any instances where someone was prosecuted for trespassing for that. I thought this was a settled question.

I was wrong.

There is now a landowner asserting that under a Colorado Supreme Court case called People v. Emmert, no one can float down a river through private property, where the same person or entity owns the land on both sides of the river, without permission. Emmert holds that not only does a landowner own the bed and banks of the river, but also controls the surface.

Emmert is in conflict with a statute passed as SB77-360 which established floating without touching the bed or banks. SB77-360 was carried by Senator Joe Kinnie and dealt with trespassing on the bed and banks but still allowed floating. Senator Kinnie said in committee: “This ... will not stop tubing, canoeing or boating on the water, but will give the property owners the help of law enforcement officials against a few people bent on causing trouble ....”

The problem is that Emmert was decided in 1979, two years after SB360 passed and the statute modified by SB360 was referenced in the opinion, so clever lawyers are arguing for this landowner that the landowner can stop passage down the river that is bounded by his property.

Enter Rep Kathleen Curry’s and Senator Mary Hodge’s HB10-1188 which would establish a “right of navigation” in Colorado, would allow incidental contact with the bed and banks of a stream and allow portage around a hazard or obstruction in the waterway.

A right of navigation is usually a dominant right, over and above other rights, like property rights. In other states, the right of navigation usually conveys ownership of the bed and banks of the waterway to the state. However, the latter is disallowed in this bill.

The new ability to touch the bed and banks and the portage are both substantial changes from the current status quo and, I think, infringements upon the rights of the property owners of said beds, banks and adjacent lands.

I am inclined to believe that on large rivers in Colorado, there exists a public right of way just like there is for roads that are bounded by private property. You can drive down a road, but you can’t stop and have a picnic on the adjacent privately owned land without permission. I think we should treat rivers in much the same way.

The big question that would need to be answered is: which rivers and streams does this “right of way” notion apply? The bill chooses to use streams commercially floated in 2008 and 2009. That’s probably too narrow, but a good starting point. It may be good enough to not name the rivers or establish in law which ones qualify. A law which doesn’t allow contact with the bed of the stream really settles that question. You can’t float it if you can’t float it (without touching that is).

Establishing this right to float would also establish that a landowner couldn’t block the waterway as that is specifically addressed in 18-9-107 where it is unlawful to block a road, street, waterway etc.

The challenge left is in making sure that fencing across a stream to keep livestock out doesn’t constitute blocking a waterway. That should be easy enough.

I will support 1188 if it re-establishes the status quo, but not if it does any more.